Citation Nr: 18156058 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 384A DATE: December 6, 2018 ORDER Entitlement to service connection for prostate cancer, due to herbicide agent exposure, is granted. Entitlement to service connection for diabetes mellitus, due to herbicide agent exposure, is granted. Entitlement to service connection for ischemic heart disease, due to herbicide agent exposure, is granted. Entitlement to service connection for bladder cancer, due to herbicide agent exposure due, is granted. Entitlement to service connection for erectile dysfunction, secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy, secondary to diabetes mellitus, is granted. Entitlement to service connection for urinary incontinence, secondary bladder cancer, is granted. FINDINGS OF FACT 1. The Veteran had service at U-Tapao Air Force Base in Thailand, and he is presumed to have been exposed to herbicide agents during that service. 1. Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that the Veteran has prostate cancer, ischemic heart disease, diabetes mellitus type 2, and bladder cancer that is presumed related to herbicide agent exposure during active service. 2. The record shows the Veteran’s erectile dysfunction is related to diabetes mellitus. 3. The record shows the Veteran’s peripheral neuropathy is related to diabetes mellitus. 2. The record shows the Veteran’s urinary incontinence is related to bladder cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 3. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 4. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 5. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. 6. The criteria for service connection for peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. 7. The criteria for service connection for urinary incontinence have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 to August 1974 with service in Thailand and Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The veteran died in August 2015. The appellant has been substituted as the claimant. The Board remanded this case in April 2017 for a hearing. The appellant testified before the undersigned Veterans Law Judge in September 2017. However, a transcript of that hearing is unavailable due to technical difficulties with the audio recording system. In a September 2018 letter, the Board advised the appellant that a transcript was unavailable and offered her the opportunity to participate in a new hearing. The appellant did not respond to that letter. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected disability, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for diabetes mellitus 3. Entitlement to service connection for ischemic heart disease The appellant has asserted that the Veteran’s prostate cancer, diabetes, and ischemic heart disease were incurred secondary to exposure to herbicide agents during service in Thailand. VA has procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the Project CHECO Southeast Asia Report: Base Defense in Thailand. Special consideration of herbicide agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand airbases. That allows for presumptive service connection of the diseases associated with herbicide agent exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. However, that applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. The Veteran’s service records show that his military occupational specialty was inventory management supervisor. The Veteran’s service personnel records show that he was stationed at U-Tapao Airfield, Thailand, from April 1972 to March 1973. The Veteran stated that while he was stationed at U-Tapao, he conducted physical and paper audits of operations, inventory, equipment, and materials. He stated that the audits allowed him contact with various materials that were stored and may have been exposed to herbicide agents. In addition, he reported that he often left the base to enter town and he came into contact with foliage at the perimeter since he walked or rode his bike. Treatment records show the Veteran was diagnosed with prostate cancer, ischemic heart disease, and diabetes mellitus type 2 during the appeal period. Those diseases were among his primary causes of death listed on the death certificate. Resolving doubt in the Veteran’s favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicide agents while serving at U-Tapao Royal Thai Air Base because it is at least as likely as not that his duties placed him on or near the perimeter of the base during his approximately one year of service at that location. Therefore, as exposure to herbicide agents during service has been conceded, service connection for prostate cancer, ischemic heart disease, and diabetes mellitus, type II, is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. 4. Entitlement to service connection for bladder cancer The appellant has asserted that the Veteran’s bladder cancer was incurred secondary to conceded exposure to herbicide agents during service. In June 2011, Dr. T.B., the Veteran’s urologist and a doctor at a VA Army hospital, opined that the Veteran’s bladder cancer was more likely than not caused by or a result of exposure to herbicide agents. The June 2011 medical opinion supports the Veteran’s claim. In providing the opinion, the examiner considered the evidence of record. Significantly, nothing within the report is contradictory. The opinion relates directly to this Veteran, and the opinion considers both the Veteran’s assertions and documented history. Therefore, the Board assigns the June 2011 opinion probative value. Significantly, no treatment provider of record has offered a contrary opinion. The claimant, with VA assistance, must provide an evidentiary basis for the claim that rises to the level of an approximate balance of positive and negative evidence, in order for the claim to be allowed. 38 U.S.C. § 5107(a); Skoczen v. Shinseki, 564 F.3d 1319 (2009); Fagan v. Shinseki, 573 F.3d 1282 (2009). In this case, the Veteran has done so. The most persuasive evidence of record shows a direct relationship between the Veteran’s bladder cancer and the Veteran’s conceded exposure to herbicide agents during service. Accordingly, the Board finds that the evidence is, at the very least, in relative equipoise. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and grant service connection for bladder cancer, due to herbicide agent exposure. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for erectile dysfunction 6. Entitlement to service connection for peripheral neuropathy The appellant contends that erectile dysfunction and peripheral neuropathy were caused or aggravated by service-connected diabetes. The appellant does not contend the disabilities are directly related to service. After review of the record, the Board finds the evidence rises to at least equipoise regarding a connection between the Veteran’s service-connected diabetes and erectile dysfunction and peripheral neuropathy. In June 2011, Dr. T.B., the Veteran’s urologist, provided a positive nexus opinion and opined that the Veteran’s erectile dysfunction was more likely than not caused by or a result of exposure to herbicide agents during service. Treatment records show the Veteran’s peripheral neuropathy diagnosis was characterized as diabetic peripheral neuropathy following an April 2008 EMG. In January 2013, Dr. J.P. stated the Veteran experienced complications with his diabetes, the worst of which was peripheral neuropathy. In November 2014, Dr. J.P. reported the Veteran’s neuropathy was so severe that he could not walk. Accordingly, the Board finds that the preponderance of the evidence supports the claims, and thus entitlement to service connection for erectile dysfunction and bilateral lower extremity neuropathy is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for urinary incontinence, to include as secondary bladder cancer The appellant contends that urinary incontinence was caused or aggravated by service-connected bladder cancer. The appellant does not contend the disability is directly related to service. After review of the record, the Board finds the evidence rises to at least equipoise regarding a connection between the Veteran’s service-connected bladder cancer and urinary incontinence. In June 2011, Dr. T.B., the Veteran’s urologist, provided a positive nexus opinion and opined that the Veteran’s urinary incontinence was more likely than not caused by or a result of exposure to herbicide agents. Treatment records showed the Veteran attributed urinary incontinence to his now service-connected disabilities, including prostate cancer, bladder cancer, and diabetes. Accordingly, the Board finds that the preponderance of the evidence supports the claim, and thus entitlement to service connection for urinary incontinence is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel